Roberts v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 25, 2024
• Docket: 3:23-cv-00105
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 COURTNY R.,1 Case No.: 23-cv-105-MMP

10 Plaintiff, ORDER RESOLVING JOINT 11 v. MOTION FOR JUDICIAL REVIEW

12 MARTIN O’MALLEY, Commissioner of [ECF No. 22] Social Security, 2 13 Defendant. 14

15 Plaintiff Courtny R. (“Plaintiff”), proceeding in forma pauperis, appeals the final 16 decision of the Commissioner of Social Security Administration (“Commissioner” or 17 “Defendant”) denying his application for disability insurance benefits and supplemental 18 security income under Titles II and XVI of the Social Security Act. [ECF No. 1, ¶ 6; ECF 19 No. 5.] Plaintiff brings this appeal pursuant to 42 U.S.C. § 405(g). Before the Court is the 20 parties’ Joint Motion for Judicial Review. [ECF No. 22.] The parties have consented to the 21 undersigned for all purposes. [ECF No. 24.] 22 23 24 1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government 25 parties by using their first name and last initial.

26 2 Martin O’Malley, the current Commissioner of Social Security, is automatically 27 substituted as defendant for Kilolo Kijakazi, the former Acting Commissioner of Social Security, pursuant to Federal Rule of Civil Procedure 25(d). 28 1 After a thorough review of the parties’ submissions, the administrative record, and 2 the applicable law, and for the reasons set forth below, the Court AFFIRMS the final 3 decision of the Commissioner of Social Security. 4 I. PROCEDURAL HISTORY 5 On October 22, 2020, Plaintiff filed an application for a period of disability and 6 disability insurance benefits under Title II of the Social Security Act, as well as for 7 supplemental security income under Title XVI, alleging a disability onset date of May 20, 8 2019 in both applications. [ECF No. 22 at 2]; Administrative Record (“AR”) 311–20. 9 Plaintiff alleges impairments of dyslexia, depression and related disorders, and 10 complications from broken left leg, the latter of which is the subject of Plaintiff’s appeal 11 for judicial review. See AR 129, 150. The claim was denied initially on May 21, 2021, and 12 upon reconsideration on August 24, 2021. [ECF No. 22 at 2]; see AR 220–24, 226–31. 13 Plaintiff filed a written request for hearing. AR 237–38. 14 On February 10, 2022, the Administrative Law Judge (“ALJ”) held a telephonic 15 hearing on the matter in which Plaintiff, appearing with counsel, as well as a vocational 16 expert testified. AR 26, 40–58. On March 4, 2022, the ALJ issued a decision denying 17 benefits. [ECF No. 1, ¶ 7]; AR 26–35. Plaintiff filed a request for Appeals Council review, 18 which was denied on November 29, 2022. AR 304–10, 1–7. Accordingly, the ALJ’s 19 decision is the final decision of the Commissioner of Social Security. 20 II. SUMMARY OF ALJ’S FINDINGS 21 A. The Five-Step Evaluation Process 22 The ALJ follows a five-step sequential evaluation process in assessing whether a 23 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 24 1098–99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the 25 claimant is currently engaged in substantial gainful activity; if so, the claimant is not 26 disabled, and the claim is denied. 20 C.F.R. § 404.1520(a)(4)(i) and (b); see also 20 C.F.R. 27 § 416.920(a)(4)(i) and (b). 28 1 If the claimant is not currently engaged in substantial gainful activity, the second 2 step requires the ALJ to determine whether the claimant has a “severe” impairment or 3 combination of impairments significantly limiting his ability to do basic work activities, 4 and which has lasted or is expected to last for a continuous period of at least twelve (12) 5 months; if not, the claimant is not disabled and the claim is denied. 20 C.F.R. §§ 6 404.1520(a)(4)(ii) and (c), 404.1509 (setting forth the twelve (12) month duration 7 requirement); see also 20 C.F.R. §§ 416.920(a)(4)(ii) and (c), 416.909. If the claimant has 8 a “severe” impairment or combination of impairments, the third step requires the ALJ to 9 determine whether the impairment or combination of impairments meets or equals an 10 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart 11 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 20 12 C.F.R. § 404.1520(a)(4)(iii) and (d); see also 20 C.F.R. § 416.920(a)(4)(iii) and (d). 13 If the claimant’s impairment or combination of impairments does not meet or equal 14 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 15 process. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step requires the ALJ to 16 determine whether the claimant has sufficient residual functional capacity (“RFC”) to 17 perform his past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Therefore, the 18 ALJ must determine the claimant’s RFC before moving to step four. 19 At step four of the sequential process, if the ALJ determines a claimant has sufficient 20 RFC to perform past relevant work, the claimant is not disabled, and the claim is denied. 21 20 C.F.R. §§ 404.1520(a)(4)(iv) and (f)–(g), 416.920(a)(4)(iv) and (f)–(g). 22 At step five, the burden then shifts to the ALJ to establish that the claimant is not 23 disabled because there is other work existing in “significant numbers” in the national 24 economy” the claimant can do, taking into account the claimant’s RFC, age, education, and 25 work experience. 20 C.F.R. §§ 404.1560(c), 416.960(c); see also 20 C.F.R. §§ 26 404.1520(a)(4)(v) and (g)(1), 416.920(a)(4)(v) and (g)(1); Hill v. Astrue, 698 F.3d 1153, 27 1162 (9th Cir. 2012). The ALJ usually meets this burden either (1) by the testimony of a 28 vocational expert who assesses the employment potential of a hypothetical individual with 1 all of the claimant’s physical and mental limitations that are supported by the record, or (2) 2 by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, 3 appendix 2. Id. The determination of this issue comprises “the fifth and last step” in the 4 sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 5 B. The ALJ’s Application of the Five-Step Process 6 At step one, the ALJ found Plaintiff had “not engaged in substantial gainful activity 7 since May 20, 2019, the alleged onset date.” AR 28 (citing 20 C.F.R. §§ 404.1571, 8 416.971). 9 At step two, the ALJ found Plaintiff had the following severe impairments: 10 “residuals of left ankle fracture and surgery, obesity, anxiety, and depression.” Id. (citing 11 20 C.F.R. §§ 404.1520(c), 416.920(c)). 12 At step three, the ALJ found Plaintiff “did not have an impairment or combination 13 of impairments that met or medically equaled the severity of one of the listed impairments 14 in 20 CFR Part 404, Subpart P, Appendix 1.” AR 29 (citing 20 C.F.R. §§ 404.1520(d), 15 404.1525, 404.1526, 416.920(d), 416.925, 416.926). In particular, the ALJ found Plaintiff 16 did not meet listing 1.17 or 1.18. Id. The ALJ also evaluated obesity pursuant to the 17 guidelines set forth in Social Security Ruling (“SSR”) 19-2p and found Plaintiff’s “obesity, 18 while severe, did not medically equal the requirements of a listing” because “it did not rise 19 to the level as to prohibit the claimant’s physical or mental ability to do any work 20 activities.” Id. The ALJ also found Plaintiff’s “mental impairments, considered singly and 21 in combination, did not meet or medically equal the criteria of listings 12.04 or 12.06.” Id. 22 The ALJ found Plaintiff had the RFC to perform medium work, as defined in 20 23 C.F.R §§ 404.1567(c) and 416.967(c), except Plaintiff “should never climb ladders, ropes, 24 or scaffolds, could frequently balance, and could occasionally climb ramps and stairs, 25 stoop, kneel, crouch, crawl, and push and pull with the left leg” and Plaintiff “should avoid 26 concentrated exposure to extreme cold, unprotected heights, and moving and dangerous 27 machinery.” AR 30. In addition, Plaintiff “was able to understand, remember, and carry 28 1 out simple instructions and tasks, and could work at a normal pace without production 2 quotas.” Id. 3 At step four, the ALJ found Plaintiff was unable to perform any past relevant work, 4 including as a shipyard laborer. AR 34. 5 At step five, the ALJ found Plaintiff was classified as a younger individual age (18 6 to 49) on the alleged disability onset date and found Plaintiff had at least a high school 7 education. Id. The ALJ found transferability of job skills was not an issue because 8 Plaintiff’s past relevant work was unskilled. Id. The ALJ found when considering 9 Plaintiff’s “age, education, work experience, and residual functional capacity, there were 10 jobs that existed in significant numbers in the national economy that the claimant could 11 perform.” AR 34 (citing 20 C.F.R §§ 404.1569, 404.1569a, 416.969 and 416.969a). The 12 ALJ adopted the vocational expert’s testimony that given all of the factors, an individual 13 with Plaintiff’s age, education, work experience, and RFC “would be able to perform the 14 requirements of representative occupations such as sweeper/cleaner (DOT #389.683-010) 15 with 92,000 jobs nationally, linen room attendant (DOT #222.387-030) with 65,000 jobs 16 nationally, and dry janitor (DOT #358.687-010) with 17,000 jobs nationally.” AR 35. 17 Accordingly, the ALJ found Plaintiff had “not been under a disability, as defined in 18 the Social Security Act, from May 20, 2019, through the date of” the ALJ’s decision this 19 decision. Id. 20 III. STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 22 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 23 only if “it is either not supported by substantial evidence or is based upon legal error.” 24 Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d 25 872, 875 (9th Cir. 2018)). 26 The substantial-evidence standard requires a reviewing court to “look to the existing 27 administrative record and ask whether it contains sufficient evidence to support the 28 agency’s factual determinations.” Id. (citing Biestek v. Berryhill, 139 S. Ct. 1148, 1154 1 (2019)) (internal quotation marks omitted). Substantial evidence means “such relevant 2 evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 3 139 S. Ct. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 4 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 5 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Overall, the 6 standard of review is highly deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 7 2023). Thus, “[w]here evidence is susceptible to more than one rational interpretation, it is 8 the ALJ’s conclusion that must be upheld.” Woods, 32 F.4th at 788 (quoting Burch v. 9 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 10 The Court “must consider the entire record as a whole, weighing both the evidence 11 that supports and the evidence that detracts from the Commissioner’s conclusion, and may 12 not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. 13 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The ALJ is responsible for resolving conflicts 14 in medical testimony as well as any ambiguities in the record. Id.; see also Magallanes v. 15 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court will “review only the reasons 16 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground 17 upon which he did not rely.” Garrison, 759 F.3d at 1010; see also Collings v. Saul, 856 F. 18 App’x 729, 730 (9th Cir. 2021). 19 The Court may also overturn the Commissioner’s denial of benefits if the denial is 20 based on legal error. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 21 However, even if the Court finds the ALJ committed legal error, a court may not reverse 22 an ALJ’s decision if the error is harmless, “which exists when it is clear from the record 23 that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id. 24 at 932 (internal quotations and citation omitted); see also Burch, 400 F.3d at 679 (citation 25 omitted). 26 IV. DISCUSSION 27 Plaintiff does not challenge the ALJ’s discrediting of Plaintiff’s subjective 28 statements or the ALJ’s evaluation of the medical opinions; instead, Plaintiff solely 1 challenges the ALJ’s opinion on the ground that substantial evidence does not support the 2 RFC determination Plaintiff was able to perform medium exertional work requiring 3 standing throughout the day and lifting twenty-five (25) to fifty (50) pounds. [ECF No. 22 4 at 4.] Plaintiff’s argument is twofold: first, the longitudinal record does not support the 5 ALJ’s determination because Plaintiff was not weightbearing, and his use of a cane to 6 ambulate is inconsistent with medium work activity. Second, even if Plaintiff’s condition 7 improved by the January 2021 consultative examination, the ALJ erred by not awarding a 8 closed period of disability, as Plaintiff was unable to bear weight for greater than twelve 9 months after his injury, from May 2019 through January 2021. [See id. at 8–10.] 10 Defendant contends generally substantial evidence supports the ALJ’s RFC 11 determination. Defendant maintains the ALJ reasonably resolved conflicts in the evidence 12 and the RFC finding accounted for all limitations that were supported by the evidence. [Id. 13 at 11.] In particular, Defendant contends the ALJ “reasonably found Plaintiff’s allegations 14 unreliable” in light of the objective medical evidence and “reasonably declined to 15 incorporate in the residual functional capacity finding any limitations associated with 16 Plaintiff’s alleged inability to walk.” [Id. at 13.] 17 A. Applicable Law 18 The “RFC is an administrative assessment of the extent to which an individual’s 19 medically determinable impairment(s), including any related symptoms, such as pain, may 20 cause physical or mental limitations or restrictions that may affect his or her capacity to do 21 work-related physical and mental activities.” Laborin v. Berryhill, 867 F.3d 1151, 1153 22 (9th Cir. 2017) (quoting Titles II & XVI: Assessing Residual Functional Capacity in Initial 23 Claims, SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). It reflects the most a claimant 24 can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 25 96-8p, 1996 WL 374184, at *1 (“RFC is not the least an individual can do despite his or 26 her limitations or restrictions, but the most.”) (emphasis in original). An RFC assessment 27 must include an individual’s functional limitations or restrictions as a result of all of his 28 impairments – even those that are not severe – and must assess his “work-related abilities 1 on a function-by-function basis.” Id.; see 20 C.F.R. §§ 404.1545(a)(1)–(2) and (e), 2 416.945(a)(1)–(2) and (e); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th 3 Cir. 2009) (“[A]n RFC that fails to take into account a claimant’s limitations is defective.”). 4 An RFC determination must be based on “all the relevant evidence in [the] case 5 record.” 20 C.F.R. §§ 404.1545(a)(1)–(3), 416.945(a)(1)–(3). “The ALJ must consider both 6 the medical evidence and ‘descriptions and observations of [the claimant’s] limitations 7 from [the claimant’s] impairment(s), including limitations that result from [the claimant’s] 8 symptoms, such as pain, provided by’ the claimant, family, friends, and other people.” 9 Laborin, 867 F.3d at 1153 (brackets in original) (citing § 416.945(a)(3)). “The RFC 10 assessment must ‘[c]ontain a thorough discussion and analysis of the objective medical and 11 other evidence, including the individual’s complaints of pain and other symptoms and the 12 adjudicator’s personal observations, if appropriate.” Id. (citing SSR 96–8p) (emphasis 13 omitted). However, in assessing the RFC, the ALJ need not accept the plaintiff’s 14 “statements as to the severity and limiting effects of his or her symptoms as true.” Id. at 15 1154 n.4. Rather, the ALJ must evaluate the plaintiff’s “symptom testimony so that the 16 ALJ can take that testimony—insofar as it is credible—into account as part of the RFC 17 assessment.” Id. (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). 18 A court must uphold an ALJ’s RFC assessment when “the ALJ applied the proper 19 legal standard and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 20 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ errs when he provides an incomplete RFC 21 that ignores or discounts “significant and probative evidence in the record favorable to [the 22 plaintiff’s] position.” Hill, 698 F.3d at 1161. 23 B. The ALJ’s RFC Determination 24 In determining the RFC, the ALJ stated he “considered all symptoms and the extent 25 to which these symptoms [could] reasonably be accepted as consistent with the objective 26 medical evidence and other evidence” and “also considered the medical opinion(s) and 27 prior administrative medical finding(s).” AR 30 (citing 20 C.F.R. §§ 404.1529, 416.929, 28 SSR 16-3p, 404.1520c, and 416.920c). 1 First, the ALJ evaluated Plaintiff’s subjective statements. AR 31. The ALJ 2 recognized Plaintiff “alleged disability mainly due to ankle issues and mental health 3 impairments”3 and acknowledged Plaintiff “testified that he fractured his left ankle in 2019, 4 followed by surgery with plates and screws” and “alleged that he still walked with a cane 5 and that his doctors still recommended it.” AR 31; see also AR 49. 6 In discrediting Plaintiff’s subjective statements, the ALJ found Plaintiff’s 7 “medically determinable impairments could reasonably be expected to cause some of the 8 alleged symptoms” but Plaintiff’s “statements concerning the intensity, persistence and 9 limiting effects of these symptoms were not entirely consistent with the medical evidence 10 and other evidence in the record for the reasons explained in this decision.” AR 31. The 11 ALJ reasoned Plaintiff’s “statements about intensity, persistence, and limiting effects” of 12 his symptoms “were inconsistent because the medical evidence of record did not support a 13 finding that these issues would preclude [Plaintiff] from working.” AR 31. The ALJ then 14 discussed Plaintiff’s medical and physical therapy records regarding his ankle injury from 15 March 2019 through December 2021. AR 31–32. 16 The ALJ also found the “objective evidence of record did not fully support 17 [Plaintiff’s] subjective allegations of disability.” AR 32. The ALJ reasoned in relevant part: 18 [Plaintiff] testified that he washed dishes in a chair, did his laundry with help, prepared small meals like sandwiches, and went to the grocery store with his 19 mom, but had issues carrying the groceries. . . . At his January 2021 orthopedic 20 consultative examination, it was noted that [Plaintiff] had poor effort during the examination, but he still had generally normal ankle findings with grossly 21 normal range of motion, but some tenderness to palpation. [AR 644–47]. He 22 continued receiving treatment and had some ongoing complaints of pain and numbness in his ankle, but no debilitating complaints. [AR 695–742.] 23

24 25 3 Plaintiff stipulates “the ALJ fairly and accurately summarized the medical and non- 26 medical evidence of record” except as addressed in the disputed issue. [ECF No. 22 at 4.] 27 The only disputed issue raised in this appeal concerns the ALJ’s treatment of Plaintiff’s ankle injury; accordingly, the Court focuses its summary of the ALJ’s analysis on the ankle 28 1 AR 32. The ALJ concluded “[o]verall, the medical evidence of record showed that 2 [Plaintiff’s] impairments would be accounted for with the residual functional capacity 3 noted above.” AR 33. 4 The ALJ next considered the medical opinions and prior administrative medical 5 findings. With respect to Plaintiff’s ankle, the ALJ found persuasive the opinions of state 6 agency’s medical consultant, Dr. Spetzler, and orthopedic consultative examiner, Dr. Liu.4 7 First, the ALJ explained Dr. Spetzler opined Plaintiff “could perform a range of medium 8 work with frequent postural limitations and supported it with his review of the record,” 9 which was “generally consistent with medical evidence of record including treatment 10 records at Exhibits 4F and 10F showing the claimant getting treated for his left ankle 11 fracture with surgery and subsequent therapy with improvement, but some ongoing 12 complaints of numbness and pain that made additional limitations more appropriate.” AR 13 33 (citing AR 172–94). 14 The ALJ also found persuasive Dr. Liu’s opinion that Plaintiff’s ankle injury 15 impairment “was essentially very slight” which he supported “with the examination 16 findings including grossly normal ankle range of motion and ability to squat and ambulate.” 17 AR 33. The ALJ explained Dr. Liu’s opinion “was consistent with treatment records at 18 Exhibit 4F showing the claimant with ongoing improvement to his ankle postoperative 19 with treatment and therapy.” Id. (citing AR 641–49). 20 The ALJ also considered the third-party statement from Plaintiff’s mother but found 21 the medical evidence “more persuasive in arriving at a decision in this matter” because 22 Plaintiff’s mother did not have any medical expertise and was not a disinterested witness. 23 AR 33–34. 24 25 4 In his briefing, Plaintiff represents the ALJ rejected Dr. Liu’s opinion. [See ECF No. 22 26 at 9 (“The ALJ did not accept Dr. Lui’s [sic] consultative opinion”); id. at 17 (“The ALJ 27 rejected Dr. Lui [sic] because his opinion is both internally inconsistent and inconsistent with the record . . . The ALJ properly rejected Dr. Lui [sic] . . .”).] These statements are 28 1 The ALJ concluded Plaintiff’s RFC “was supported by the evidence of record, 2 showing no verifiable condition that would preclude [Plaintiff] from performing the 3 requirements of work as set forth above,” and “[t]he medical evidence of record did not 4 support [Plaintiff’s] the claimant’s subjective allegations” and “did not show any 5 combination of impairments that would result in debilitating limitations and which would 6 preclude [Plaintiff] from performing all forms of work activities.” AR 34 7 C. Treatment Records 8 Because the parties’ arguments focus on Plaintiff’s treatment for his left ankle injury, 9 the Court discusses them in relevant part below. 10 On March 20, 2019, Plaintiff presented to Alvarado Hospital Medical Center with a 11 left ankle fracture after falling of his skateboard. AR 456–58. Plaintiff was unable to walk, 12 had swelling and tenderness of the distal fibula, and decreased range of motion of the ankle. 13 AR 458. X-ray confirmed Plaintiff had a nondisplaced distal fibula fracture with “widening 14 at the Orties joint medially.” Id. Plaintiff was placed in a posterior splint with a stirrup, 15 provided crutches, and instructed to remain non-weightbearing. Id. Plaintiff was provided 16 a limited return to work/school beginning March 27, 2019, with the restriction of “[n]o 17 weightbearing on the L ankle.” AR 470. Plaintiff reported taking ibuprofen 800 mg or 18 “Norco 5/325” during the day but was able to sleep without waking from pain. AR 636. 19 Plaintiff underwent surgery of his left distal fibula fracture on May 17, 2019. AR 20 551–59. Following the procedure, Plaintiff was instructed to remain non-weightbearing of 21 the left ankle for ten weeks, use a short-leg splint, and return to the clinic in two weeks for 22 “placement of CAM boot, begin range of motion, but strict nonweightbearing.” AR 557. 23 On June 6, 2019, Plaintiff attended a post operative appointment, where Plaintiff 24 reported one episode of accidentally bearing weight on his operative ankle. AR 550. 25 Plaintiff further reported a pain score of five out of ten, describing the pain as “intermittent, 26 dull, worse with activity, and less with rest.” Plaintiff also reported numbness/tingling of 27 his left lower extremity. Id. Upon physical examination, Plaintiff’s gait was observed to be 28 “NWB [non-weightbearing] using knee scooter” and “[o]therwise doing well post op.” Id. 1 X-rays confirmed “maintained alignment without evidence of implant loosening or 2 failure.” Id. Plaintiff was provided a CAM boot as well as exercises to improve ankle range 3 of motion, and he was instructed to remain non-weightbearing of the left ankle for ten 4 weeks, with a follow up in four weeks. Id. 5 The treatment records from Plaintiff’s subsequent post op examination on July 11, 6 2019 noted Plaintiff reported some numbness in his foot and overall compliance with non- 7 weightbearing, though he did try to put weight on it but complained of too much pain. AR 8 549. The physical examination found Plaintiff’s gait was non-weightbearing of the lower 9 left extremity in CAM boot. Id. Plaintiff was instructed to continue non-weightbearing and 10 maintaining the CAM boot for two additional weeks, and then Plaintiff could “start to 11 gradually increase to WBAT [weight bearing as tolerated] at that time” and “wean off” the 12 CAM boot. Id. 13 The treatment records from Plaintiff’s next follow-up exam on August 22, 2019 14 indicated Plaintiff’s gait was “using crutches” and noted “[a]t last visit, patient was told to 15 progress to WBAT, however, patient states has remained NWB. He continues to use 16 crutches and his boot.” AR 548. Plaintiff also reported his pain score was a zero out of ten 17 with “some” numbness at the top of his foot. Id. X-rays taken that day demonstrated 18 “interval healing and maintained alignment without evidence of implant loosening or 19 failure, congruent ankle mortise.” Id. Plaintiff’s doctor again instructed him to weight bear 20 as tolerated and to transition out of the boot and off crutches. Id. Plaintiff was also referred 21 to physical therapy and cleared for low impact exercise such as swimming and stationary 22 bike. Id. 23 On October 3, 2019, Plaintiff presented for his twenty-week post op examination. 24 AR 545. Plaintiff’s gait was observed as using crutches, against the advice of his doctors. 25 AR 546. The treatment records indicated: 26 At last visit, patient was again told to progress to WBAT after being told at his last visit to progress. He again has not ambulated on it much. . . . He 27 continues to use crutches but has [to] transition to using regular shoes. He only 28 has pain with certain activities and is only mild at this point. 1 AR 545. The treatment records separately noted Plaintiff’s doctor “discussed again the 2 importance of WBAT and regaining function of his leg” and that “[h]e needs to progress 3 to increasing activity with his PT as his fracture is healed at this time.” AR 546. 4 Treatment records from December 19, 2019 noted Plaintiff’s gait was using 5 crutches, though he was “weight bearing with a cane, and advancing his activity” and that 6 he had “no pain and feels that he is improving.” AR 544. X-rays confirmed “a well healed 7 fracture, and stable fixation.” AR 545. Plaintiff was instructed to continue physical therapy 8 and discontinue cane when able. Id. 9 On March 5, 2020, Plaintiff had another follow up examination of his ankle. AR 10 541. The treatment records noted his gait was “antalgic, using cane” and Plaintiff walked 11 with a limp. Id. Plaintiff reported he still had to ambulate using a cane and a pain score of 12 three out of ten. Id. The treatment notations indicated X-rays revealed “no obvious 13 malalignment” and an MRI was ordered because the provider could not “appreciate any 14 cause for lack of improvement in rehab.” AR 542. Plaintiff was instructed to weight bear 15 and advance activity as tolerable, and physical therapy was re-ordered. The treatment notes 16 further indicated “No work note given – no further disability unless further surgery 17 indicated.” Id. 18 Treatment records from May 2020 indicated Plaintiff’s MRI “seems to be largely 19 normal.” AR 627. Treatment notations from Plaintiff’s orthopedic surgeon, Dr. Girard, 20 indicated Plaintiff was “progressing much slower than expected” even though his “exam 21 shows no deformity, minimal edema, improved rom [range of motion], appears 22 function[al], dysfunctional gait with a cane.” AR 472. In addition, Dr. Girard noted the 23 MRI was negative for residual displacement, ligament injury, or “OLT” that would explain 24 Plaintiff’s symptoms. Id. The physical examination showed Plaintiff’s gait was antalgic, 25 and Plaintiff reported “mild” lateral ankle pain rated a three out of ten, which he took 26 Motrin PRN for pain relief. The treatment notations indicated Plaintiff “in general 27 continu[ed] to progress slowly, with mild lateral mid/distal leg/ ankle pain and continued 28 use of a cane for ambulation” and the MRI showed “no evidence of significant pathology 1 to explain [the] ongoing pain, and on exam, pain does not seem to be directly attributable 2 to hardware.” AR 473. Plaintiff was also instructed to continue to weight bear and perform 3 activities as tolerated. AR 473–74. 4 Plaintiff began physical therapy in June 2020. Records indicate Plaintiff reported 5 still using a cane and taking ibuprofen once a night. AR 623, 620, 533. Physical therapy 6 records from July 2020 assessed Plaintiff as having “significant weakness noted throughout 7 L LE.” AR 528. Physical therapy records from August 2020 noted Plaintiff was “making 8 slow progress with improved gait and WB tolerance and L LE strength” with less pain 9 overall and improved range of motion. AR 520. Physical therapy records from September 10 2020 noted Plaintiff walked with a single point cane which decreased weightbearing and 11 stance time on the left side, demonstrated “global lower extremity strength deficits,” and 12 continued to exhibit difficulty with walking and navigating stairs, though he also reported 13 “overall feeling stronger” and “walking also getting easier.” AR 517, 510, 509, 506. He 14 also demonstrated improved speed during ambulation and a decreased report of pain. AR 15 506. 16 As of October 2020, physical therapy records demonstrated, Plaintiff was able to 17 walk across the street to the grocery store to go shopping and reported feeling stronger with 18 “very minimal” pain, AR 501, and as of November 2020, Plaintiff was “able to perform 19 step ups on 6” step with upper extremity support.” AR 488. Physical therapy records from 20 December 2020 indicated Plaintiff was “not performing HEP as instructed, has not 21 progressed beyond bedside exercises, still using SPC. By this point should have returned 22 back to work. Not putting forth good effort.” AR 115–16. 23 On January 24, 2021, Dr. Liu performed an orthopedic consultative examination. 24 AR 642–49. The physical examination revealed Plaintiff ambulated slowly but was able to 25 get up from a sitting position, walk on his toes and heels, and perform a tandem walk, and 26 had no difficulty squatting or getting up from bed. AR 645. There was no tenderness or 27 effusion, and the ankles were stable. AR 647. Dr. Liu observed tenderness with palpation, 28 and range of motion of the ankles was grossly normal, though the left ankle range of motion 1 was “very slightly decreased compared to the right.” AR 647. X-rays confirmed a previous 2 fracture of the distal fibula with a fixation plate present, though no fracture line was seen 3 and the ankle was “normal.” AR 642. Dr. Liu found, despite Plaintiff’s subjective 4 complaints of chronic pain, “[o]bjectively, he only has a very slightly decreased range of 5 motion of the left ankle compared to the right” and “[g]ait is slow, but poor effort and give- 6 way pattern noted throughout [the] examination.” AR 648–49. Dr. Liu concluded that 7 Plaintiff’s impairment was “essentially very slight in nature” and there were “no function 8 restrictions.” AR 649. 9 Treatment records from the August 2021 physical examination revealed Plaintiff had 10 a normal gait, appropriate tone and muscle bulk, “[s]trength 5/5 upper and lower 11 extremities” and “[d]eep tendon reflexes 2+.” AR 677. Plaintiff resumed physical therapy 12 in September 2021 with Family Health Centers of San Diego, in which he reported 13 difficulty with prolonged walking and standing, pain the back of his ankle, and continued 14 use of a cane for ambulation. See AR 730, 726, 716, 70–71, 65–66. 15 D. Analysis 16 1. Substantial Evidence Supports the ALJ’s RFC Determination 17 The Court finds substantial evidence in the longitudinal record supports the ALJ’s 18 RFC determination. First, the ALJ found persuasive the opinions of Drs. Liu and Spetzler, 19 AR 33, which Plaintiff does not challenge. [See ECF No. 22 at 4.] The ALJ found 20 persuasive Dr. Liu’s conclusion that Plaintiff’s “impairment was essentially very slight” 21 which he supported “with the examination findings including grossly normal ankle range 22 of motion and ability to squat and ambulate.” AR 33. The ALJ also found Dr. Liu’s opinion 23 consistent with the treatment records showing Plaintiff “with ongoing improvement to his 24 ankle postoperative with treatment and therapy.” Id. The ALJ separately found persuasive 25 Dr. Spetzler opinion that Plaintiff “could perform a range of medium work with frequent 26 postural limitations.” AR 33. Specifically, Dr. Spetzler opined in relevant part Plaintiff 27 could lift or carry fifty pounds occasionally and twenty-five pounds frequently; stand, 28 walk, or sit for about six hours in an eight-hour workday; and push or pull was limited to 1 frequent in lower left extremities. AR 184. In connection with his opinion, Dr. Spetzler 2 reasoned Plaintiff “had a relatively minor injury treated routinely and a medium RFC is 3 appropriate giving the claimant credence for pain complaints.” AR 185–86. The ALJ found 4 Dr. Spetzler’s opinion was consistent with the medical evidence of record showing Plaintiff 5 “getting treated for his left ankle fracture with surgery and subsequent therapy with 6 improvement, but some ongoing complaints of numbness and pain that made additional 7 limitations more appropriate.” AR 33 (citing AR 172–94). The ALJ evaluated the 8 persuasiveness of these medical opinions and then, upon finding them persuasive, took 9 them into account as part of the RFC assessment. See 20 C.F.R. §§ 404.1545(a)(1)–(3), 10 416.945(a)(1)–(3). 11 The medical treatment records also support the ALJ’s RFC determination. The 12 treatment records indicate Plaintiff was non-weightbearing on his left ankle in accordance 13 with his doctor’s medical advice for ten weeks post-surgery, through July 2019. At that 14 point and in numerous subsequent appointments, Plaintiff was specifically instructed to 15 weight bear as tolerated on the left ankle and to transition out of the boot and off crutches. 16 AR 548. As of October 2019, X-rays confirmed Plaintiff’s ankle was healed, and Plaintiff 17 was again instructed to weight bear as tolerated and educated on the importance of 18 regaining function in his leg. AR 546. As of December 19, 2019, Plaintiff was able to 19 weight bear with a cane, though he still used crutches, and the treatment records reflect he 20 had no pain and was improving. AR 544. He was then instructed to discontinue using the 21 cane. AR 545. Despite this instruction, Plaintiff continued to use a cane to ambulate, though 22 he reported minimal-to-no pain. X-rays taken in March 2020 confirmed no malalignment 23 of the hardware in Plaintiff’s ankle, such that his treating orthopedic doctors ordered an 24 additional MRI because they could not identify any medical cause for Plaintiff’s lack of 25 improvement. See AR 542. The MRI was “largely normal” and ruled out various potential 26 causes to explain Plaintiff’s subjective symptoms. AR 627, 472. Further, in May 2020, 27 Plaintiff’s physical examination showed no deformity, minimal edema, improved range of 28 motion, and that Plaintiff appeared functional, though he had a “dysfunctional gait with a 1 cane.” AR 472. Plaintiff also reported a three out of ten-pain level at the time, which he 2 treated with Motrin. AR 473. November 2020 physical therapy records show Plaintiff was 3 progressing, though slowly due to his own subjective fear of putting body weight onto his 4 left leg. AR 489. Physical therapy records from December 2020 indicated Plaintiff was not 5 performing his home exercise program (HEP) as instructed, was still using a cane, with the 6 notation “[b]y this point should have returned back to work. Not putting forth good effort.” 7 AR 115–16. 8 In sum, the two medical opinions the ALJ found persuasive, which Plaintiff does not 9 challenge, as well as the medical treatment records provide substantial evidence for the 10 ALJ’s RFC determination of medium work. See Bayliss, 427 F.3d at 1217 (“In making his 11 RFC determination, the ALJ took into account those limitations for which there was record 12 support that did not depend on [the plaintiff’s] subjective complaints. Preparing a function- 13 by-function analysis for medical conditions or impairments that the ALJ found neither 14 credible nor supported by the record is unnecessary.”) (citing SSR 96–8p). 15 The Court is not persuaded by Plaintiff’s argument the ALJ ignored “significant and 16 probative evidence” and simply chose an RFC without considering Plaintiff’s continued 17 use of a cane. [See ECF No. 22 at 8–10.] As an initial matter, in making the RFC 18 determination, the ALJ expressly considered Plaintiff’s use of a cane. AR 31; see AR 32 19 (citing AR 548–49, 544, 541) (“In August 2019, he reported zero out of ten pain, and he 20 continued using crutches and his boot.”); (“By December 2019, he was weightbearing with 21 a cane, advancing his daily activity, had no pain, and felt that he was improving.”); and 22 (“March 2020 progress notes showed that he had been attending physical therapy, was still 23 using a cane to ambulate, and walked with a limp.”). Plaintiff’s use of a cane alone, 24 however, does not establish his alleged severity or limiting effects for purposes of the RFC 25 assessment. The Ninth Circuit has made clear the ALJ need not accept the plaintiff’s 26 “statements as to the severity and limiting effects of his or her symptoms as true.” Laborin, 27 867 F.3d at 1154 n.4. Rather, the ALJ must evaluate the plaintiff’s “symptom testimony so 28 that the ALJ can take that testimony—insofar as it is credible—into account as part of the 1 RFC assessment.” Id.; see Higgins v. Kijakazi, No. 22-35966, 2023 WL 7211390, at *2 2 (9th Cir. Nov. 2, 2023) (“Crucially, however, the ALJ need only consider ‘symptoms . . . 3 [to] the extent to which [these] symptoms can reasonably be accepted as consistent with 4 the objective medical evidence.’ [ ] An ALJ need not adopt allegations that the record does 5 not support.”) (citing Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001) (quoting 6 20 C.F.R. § 404.1529(a)) (emphasis added) (some alterations in original). In discrediting 7 Plaintiff’s subjective statements—once again, a finding Plaintiff does not dispute—the 8 ALJ specifically identified Plaintiff’s continued use of a cane. See AR 31 (“He alleged that 9 he still walked with a cane and that his doctors still recommended it.”). The ALJ discredited 10 Plaintiff’s statements regarding intensity, persistence, and limiting effects on the grounds 11 his symptoms were inconsistent because the medical evidence did not support a finding 12 Plaintiff’s symptoms were work preclusive and the objective evidence did not support 13 Plaintiff’s subjective allegations of disability. AR 31–32. Plaintiff does not challenge the 14 ALJ’s conclusions. Thus, because the ALJ discredited Plaintiff’s subjective statements, the 15 ALJ was not required to incorporate Plaintiff’s statements regarding intensity, persistence, 16 and limiting effects in the RFC assessment. 17 Finally, to the extent Plaintiff argues the ALJ should have incorporated his use of a 18 cane into the RFC determination, his argument is not persuasive. In assessing alleged use 19 of a cane for purposes of the RFC, the Ninth Circuit and other district courts have applied 20 the language of Social Security Ruling 96-6p: 21 To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device 22 to aid in walking or standing, and describing the circumstances for which it 23 is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). 24

25 SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996) (emphasis added); see Sou v. Saul, 799 26 F. App'x 563, 564 (9th Cir. 2020); Pokriots v. Astrue, No. 11-CV-00117, 2012 WL 27 28 1 2395184, at *6 (D. Idaho June 25, 2012) ; see also; Beatrice D. A. v. Kijakazi, No. CV 22- 2 01207, 2023 WL 3007921, at *3 (C.D. Cal. Apr. 19, 2023) (“The use of a hand-held 3 assistive device such as a cane is a functional limitation only if it is medically required.”); 4 Pete A. v. Kijakazi, No. 20-CV-1566-LL, 2021 WL 5396113, at *3 (S.D. Cal. Nov. 18, 5 2021) (citing Luis G. v. Saul, No. ED CV 19-00317, 2020 WL 1433589, at *3 (C.D. Cal. 6 Mar. 24, 2020) (“[T]he use of an assistive device is probative of a claimant’s functional 7 limitations only where it is medically required.”) and Dean N. v. Saul, Case No. CV 18- 8 09840, 2020 WL 430962, at *1 (C.D. Cal. Jan. 28, 2020)); Mays v. Astrue, 2012 WL 9 1865496 at *7 (N.D. Ohio, May 22, 2012). Plaintiff does not satisfy the standard set forth 10 in SSR 96-9p, as no doctor prescribed or recommended the continued use of a cane. Rather, 11 Plaintiff’s treating orthopedic physicians repeatedly instructed Plaintiff to weight bear and 12 to transition off crutches and his boot as of July 2019 and to discontinue the use of his cane 13 when able in December 2019. The treatment notations also do not establish a cane was 14 medically necessary, particularly as the multiple X-rays and MRI confirmed Plaintiff’s 15 ankle was well healed. Though Plaintiff does not address or argue his continued use of a 16 cane was medically necessary, he cites various physical therapy records that document his 17 use of a cane. These records, however, merely observe Plaintiff continued to use a cane for 18 ambulation—they do not recommend continued use. Moreover, the Ninth Circuit has 19

20 21 5 The district court explained: The Social Security Administration’s Program Operations Manual System 22 (POMS) is described as “a primary source of information used by Social 23 Security employees to process claims for Social Security benefits.” See https:// secure.ssa.gov/apps10/poms.nsf/Home?readform. The section on 24 disability insurance includes guidance on medical-vocational evaluation and, 25 in particular, determining any physical limitations and their effects of ranges of work. POMS DI 25020.005, entitled “Medically–Necessary Hand–Held 26 Assistive Device,” provides a link to DI 25015.020B.6 which tracks the 27 language of Social Security Ruling (“SSR”) 96–9p. See https:// secure.ssa.gov/apps10/poms.nsf/lnx/0425015020# b6. 28 1 recognized a note from a physical therapist “is not a medical opinion, and thus does not 2 constitute ‘medical documentation’ under SSR 96-9p.” Sou, 799 F. App’x at 564 (emphasis 3 in original). Thus, the physical therapy notes “could not have established that [Plaintiff’s] 4 use of a cane was medically necessary.” See id. at 564 n.1; Amber C. v. Saul, No. 19-CV- 5 03208, 2020 WL 2061771, at *3 (C.D. Cal. Apr. 29, 2020) (“The physical therapy notes, 6 including the note regarding Plaintiff's training to use the walker, did not describe such 7 circumstances and, in any event, such notes were not the type of medical documentation 8 contemplated by SSR 96-9P.”). 9 The Court finds the ALJ did not err in declining to incorporate Plaintiff’s use of a 10 cane into the RFC. See Pete A., 2021 WL 5396113, at *5–8 (finding substantial evidence 11 supported the ALJ’s finding the plaintiff had the RFC to perform medium work despite the 12 claimant’s alleged use of cane, where he failed to establish the cane was medically 13 necessary); Mays, 2012 WL 1865496, at *7 (finding no error in the ALJ’s refusal to 14 consider Plaintiff’s use of a cane for ambulation in formulation of his RFC of medium work 15 where cane was not prescribed or medically recommended for ambulation). 16 2. Substantial Evidence Supports the ALJ’s Determination of Non- Disability Prior to January 2021 17

18 Plaintiff next argues while his condition improved as the ALJ recognized, there was 19 still a period of disability when Plaintiff was not even weight bearing until January 2021; 20 as a result, the ALJ erred by not awarding a closed period of disability. [ECF No. 22 at 5, 21 10.] Under the social security regulations, a person is disabled if he is unable to engage in 22 any substantial gainful employment “by reason of any medically determinable physical or 23 mental impairment which can be expected to result in death or which has lasted or can be 24 expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 25 404.1505(a), 416.905(a). District courts have recognized “an ALJ must consider a closed 26 period of disability if evidence supports a finding that a person is disabled for a period of 27 at least twelve months.” Alicia M. v. Comm'r of Soc. Sec., No. 21-cv-00433, 2023 WL 28 2744135, at *3 (D. Idaho Mar. 31, 2023) (citing Reynoso v. Astrue, No. cv 10-04604, 2011 1 WL 2554210 at *3 (C.D. Cal. 2011); Dianna K. v. Saul, No. 5:18-CV-02216-JDE, 2019 2 WL 13037009, at *2 (C.D. Cal. Aug. 19, 2019). 3 The ALJ found Plaintiff had not been under a disability from May 20, 2019 through 4 the date of the ALJ’s decision. AR 35. Because the May 2019 through January 2021 period 5 is contained within the period of time explicitly identified by the ALJ, the ALJ implicitly 6 denied Plaintiff’s disability during the alleged closed period. See Saul v. Colvin, No. CV- 7 14-01305-PHX-JZB, 2015 WL 5693541, at *4 (D. Ariz. Sept. 29, 2015); Alicia M., 2023 8 WL 2744135, at *4–5 (“[T]he ALJ’s conclusion that Plaintiff was not disabled during the 9 relevant time period means that Plaintiff was not entitled to a closed period of disability at 10 any time during that same period.”). 11 The Court finds substantial evidence supports the ALJ’s non-disability 12 determination during this period. As of May 2020—twelve months after the alleged 13 disability onset date—the objective medical evidence including multiple X-rays and MRI 14 established Plaintiff’s left ankle was well healed. Further, Plaintiff was increasing his 15 activity and walking tolerance in particular, and Plaintiff exhibited improved range of 16 motion in his left ankle. While Plaintiff contends his “injury was not routine as by June 17 2020, more than a year later, he was only putting 15 to 25% weight on his left leg,” ECF 18 No. 22 at 17, the physical therapy record in question is from Plaintiff’s telehealth 19 appointment and specifically indicates the provider was unable to evaluate Plaintiff over 20 video; thus, this reflects Plaintiff’s subjective statements, which the ALJ discredited. See 21 AR 536. By July 2020, Plaintiff reported only weight bearing up to fifty percent, though 22 the treatment records show improved range of motion and weight bearing tolerance. AR 23 530–31. By August 2020, Plaintiff was making slow progress with improved gait, 24 weightbearing tolerance, and left lower extremity strength, and he had improved range of 25 motion and overall less pain. AR 520. By September 2020, Plaintiff reported feeling 26 stronger, experiencing less stiffness, and moving faster up stairs and walking easier, though 27 he demonstrated decreased strength and balance deficits in the lower left extremity and 28 reported lateral ankle pain if walking up stairs or too far. AR 517, 615, 509. He also 1 reported no increase in pain during or after the physical therapy sessions. AR 515. In 2 October 2020, Plaintiff was able to walk across the street to the grocery store and reported 3 “very minimal” pain, though he was guarding with left ankle activities and required upper 4 extremity support for heel raises and partial gait tasks. AR 501, 500, 497. In November 5 2020, Plaintiff was able to perform step ups on six-inch steps but required increased time 6 due to fatigue; however, he still had difficulty performing single limb balance due to his 7 subjective fear of putting all his body weight through left leg. AR 489. However, physical 8 therapy records from December 2020 indicated Plaintiff was not performing his home 9 exercise program (HEP) as instructed, had not progressed beyond beside exercises, and 10 was still using a cane, noting “[b]y this point should have returned back to work. Not 11 putting forth good effort.” AR 115–16. 12 The Court recognizes the evidence may be susceptible to more than one rational 13 interpretation and acknowledges Plaintiff views the evidence differently. Nevertheless, the 14 Court finds the ALJ’s nondisability finding for the alleged closed period, from May 2019 15 to January 2021, was based on a rational interpretation of the record and therefore 16 supported by substantial evidence. See Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 17 2017) (“As we cannot say that the ALJ’s interpretation of the available evidence was not 18 rational, the ALJ’s conclusions were supported by substantial evidence.”). Thus, given the 19 highly deferential standard of review, the Court will not disturb the ALJ’s conclusion. 20 Woods, 32 F.4th at 788 (“Where evidence is susceptible to more than one rational 21 interpretation, it is the ALJ’s conclusion that must be upheld.”) (quoting Burch, 400 F.3d 22 at 679). 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 CONCLUSION 2 Based on the foregoing analysis, the Court AFFIRMS the final decision of the 3 |}Commissioner of Social Security. Accordingly, the Court resolves the Joint Motion for 4 || Judicial Review [ECF No. 22] in Defendant’s favor and DENIES Plaintiff's motion to 5 reverse the judgment and remand to the Commissioner. 6 The Clerk shall enter judgment accordingly and terminate the case. 7 IT IS SO ORDERED. 8 || Dated: March 25, 2024 Wyble. th. ea 9 HON. MICHELLE M. PETTIT 10 United States Magistrate Judge

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